Posts: 18

Topic: Copyright

What is The Athenaeum's policy on copyright? Out of yesterday's 77 posts, only 19 were available as full downloads. The other 58 were believed to be 'under copyright' and 'only thumbnails may be displayed under fair use', This includes all works by Henri Matisse, for example, even those dating from the 19th and early 20th centuries. Why are works by the Polish artist Wladyslaw Bakalowicz, posted earlier in the week, believed to be under copyright? He died in 1903.

Re: Copyright

You raise a good point, Jubilee. We haven't quite settled our approach to copyright rules, though we're having some discussions behind the scenes among the major uploaders here.

I get a threatening or litigious e-mail about once month or two. Thus far I have always been able to satisfy them or fight them off, but my nightmare is that someone will one day succeed in dragging me to court, a cost that would be very difficult for me. Thus the guiding principle is that our approach needs to be "safe" enough to never endanger The Athenaeum. It is frustrating to see many web sites, large and small, seeming to disregard copyright and get away with it, knowing that we have to hold to a higher standard. This will only be more true as we grow in visitors and importance, and as we one day begin to court more museums and art professionals to participate in the site.

I'm not sure we differ so much from Wikipedia. We (as they) apply US copyright law, and as you say, there is a rule that artworks "published" prior to 1923 are public domain, even if the artist died way after that. Another rule that comes into play is that if an artist died more than 70 years ago, all of their works are public domain by default. It's more complex than that, but let's stick to those rules for this discussion.

So let's take Matisse, whose works we are adding to at the moment. He died on November 3, 1954. By the "70 year rule," all of his art will fall into the public domain on November 4, 2024. However, he has plenty of works painted before 1923. If any of those were published, they should be in the public domain, per the 1923 publication rule.

But how do we know they were "published," eh? Publishing as regards art and copyright is typically taken to mean dissemination of multiple authorised printed copies - in books, or postcards, etc. Selling the artwork, or a gallery show (which is "ephemeral" and not a "publication") don't count. If we wanted to be absolutely certain that one of those pre-1923 works was public domain, we'd have to know:

A) That it was published in a book or on postcards or calendars etc before 1923, ANDB) That the publication itself was legal and authorised.

We could (and I think eventually will) build a way for members to crowd-source this, by finding pre-1923 books, going through them, and noting on individual artwork pages that they were published in a certain book on a certain date and are therefore public domain. But that's a lot of work with very little return - how many people will dedicate themselves to doing that? Not many.

Instead, we have to have some "best guess" rules here, and they have to balance respect of copyright (both on its own merits and to safeguard our site) with the desire to make more artwork available to our viewers and members. Right now the rule is the simple one about when an artist died. All artists who died more than 70 years ago should be shown as public domain here on our site. But the class of "artworks before 1923, by artists who died more recently than 70 years ago" is still listed as copyrighted.

I am considering whether we can reasonably apply a different rule, such as "this artwork is older than 1913, so we assume that it was most likely published before 1923". Perhaps coupled with prominent text saying that viewers reuse such artworks at their own risk, and we welcome corrections by copyright holders, that would be enough, and it would "unlock" a lot of artworks.

One thing you should know is that we always keep the full-sized image in the database, and we are planning on unlocking those full versions every year as the artists who died 70 years ago advances by one year. That means that one January 1 of each year we can have a sort of celebration as hundreds more artworks pass into the public domain.

It's an interesting conversation to have, and of central importance to efforts like ours. I welcome your thoughts!

Re: Copyright

Oh, and I fixed the artworks for Wladyslaw Bakalowicz. He was mis-tagged. Any time you find someone who should be public domain (by their date of death) and are not, let us know - we can fix those pretty much instantly.

Re: Copyright

Interesting topic. Offhand, the Wikimedia statement says that an exact reproduction of a two-dimensional work which is in the public domain by virtue of its age (or permission of its author) is also in the public domain. There is a problem with this. If you could take these public domain works down from the walls of their respective galleries and stick them in a scanner or copier and get an exact reproduction that way (parallel thought here) then it would be simple to claim that the reproduction was equally in the public domain. But if you take a camera into a museum, and jump through all the hoops they hold up for you, (eg, permission to use a tripod, or even permission to use the camera, and restrictions against flash photography) then you set everything up, probably including reflectors to hopefully eliminate the shadows often introduced by the frame of the picture being photographed, and you somehow avoid getting glare from the glaze or just the poor lighting available and produce a reasonable facsimile of the masterpiece, you have created a masterpiece of photography. Why should you not be allowed the protection of copyright for that work? My personal stance is this: I would be satisfied to be paid for making the photo of the painting, it would be a day's work, worth whatever highly skilled work is worth for a day, and maybe expenses could also be covered by the buyer, and I would never restrict publication of the work. But then, wouldn't the buyer be essentially buying the rights to the photo? (Parallel thought from above) No photo or scan of a picture, painting or print or any other kind of art work, is an exact reproduction of the original, so that argument has a serious flaw right off. PS, this is my first post here, I just registered minutes ago and it is a delight to get into a website where I am immediately engaged without searching around for something interesting. (this post is copyrighted!)

Re: Copyright

This is a really great conversation. Thanks to all for getting into the meat of it!

Unfortunately (from a photog's point of view) DigitalArteeste, the argument of "it was a lot of work" has been explicitly discounted in US copyright law. I forget the specific case, but there was one involving the compilation of a phone book by a phone company where the court said effectively "Just because you put a lot of work into it doesn't make it protectable as a a creative work."

One might ask "Well, what *is* a creative work, then?" The general answer seems to be something that significantly injects your self-expression into it. Clearly that's a subjective point - one person might argue that even when taking a photo that aims to "reproduce" a two-dimensional artwork, there are still many creative decisions to be made along the way. You could even get super modern and ask why we label some choices as "creative" and others as not so. Why is an artist's choice about brushstrokes given special consideration as opposed to the the specific and personal way in which I eat my dinner? Why couldn't I then copyright anything I do as effectively a highly personal and artist self-expression, any recording of which I could block on copyright grounds? Fun to think about from a philosophical perspective. In US case law though, it's established that such a photograph doesn't have enough "protectable creativity" to be covered by copyright.

Therefore your approach is basically right. You can do the photograph as skilled work, and get paid for that effort and expertise. But the person/company who commissions the photograph has not paid you to create something with a level of "creative expression" that qualifies for copyright. At least in the US. I know France is a bit more protective of creative IP - I wonder if they have a different rule?

Re: Copyright

Hi Chris - Based on what you said in post 121, am I correct in assuming that I can use a downloaded copy of a picture of a public domain piece of art without fear of it (the photograph, i.e. .jpg file) being copyrighted?

Re: Copyright

Hello Bill,No copyright can be claimed for a reproduction of a 2D art (ie painting or drawing) which is more than 90 years old or if its creator died more than 70 years ago. There is a decision of a federal court in the USA about this issue (Bridgeman Art Library v. Corel Corp.):http://en.wikipedia.org/wiki/Bridgeman_ … orel_Corp.So I think it is "secured" in the USA to upload public domain images as much as you want.

Nevertheless, it doesn't really apply for sculptures and can be different in other countries. For instance, in the UK, museums - such as the Tate - usually claim copyright for all of their artworks' pictures and I don't know if they can sue an American website for not respecting their claims. I would feel a bit guilty in this case as I have uploaded more than 300 pictures from them recently.Internet Law is still in its infancy...

Re: Copyright

Hi, I don't know where should I ask on using Public Domain artwork, so here I posts.

I work for a publishing company in South Korea and we are now planning to publish an art textbook for kids, and want to add a piece of image Athenaeum site has. It's The Holy Family with the infant Saint John the Baptist in a landscape by Orazio Gentileschi. (http://www.the-athenaeum.org/art/detail.php?ID=39932)

We usually do copy-right related job through Getty Images Korea, but they said they don't have this one and instead introduced us this site. This painting is also PD in South Korea according to our nation's law, then can it be OK to use this image with our work? (I already saw the comments below the painting which saids that The Athenaeum lists an artwork as public domain in the United States. ) I already asked this to SACK, the organization which handles foreign artwork's rights in South Korea and they recommend us to use images with 'proper source' and it's better to check if Athenaeum has the image without legal problem.

Please excuse my poor english and let me know your opinion on this through daisylee@compasspub.com

Re: Copyright

Hello Daisy,

I did not know that the Getty knew the Athenaeum and advised other people to use it. That is encouraging!

The question you asked is difficult to answer, nevertheless here is all I can say about it:The painting you have mentioned is now in private hands somewhere in Europe, so no museum can prevent you from using the picture, and I do not think the private collector will do it. The problem is that the artwork was sold for £2,423,500 at Sotheby's on July 6, 2000 (lot 28): http://www.sothebys.com/en/auctions/eca … ot.28.html

The picture on the Athenaeum was probably scanned from an auction book published by Sotheby's, so I would not call this a "secure" source. Sotheby's seems to have an ambivalent policy on copyrights as they permit to copy pictures in public domain from their website. But on the other hand, this action is said to be only for personal use, and that they "will aggressively enforce its intellectual property rights to the fullest extent of the law, including the seeking of criminal prosecution." (http://www.sothebys.com/en/terms-conditions.html)Nevertheless, these terms conditions only apply to the contents of the website and nothing is said about their auction books, which are usually thrown away after the sales.

I do not know if it is clearer for you... Anyway, I would say that you can use the picture as it is in public domain, I cannot see how they can prevent you from publishing it in a children's book in Korea.

In other countries, the question of PD-pictures on the Internet remains open. In case of France, this issue has only been brought before several local courts and their decisions are contradictory, either similar to 'Bridgeman v. Corel' or the British Law (http://fr.wikipedia.org/wiki/Utilisateur:Jastrow/PD-art). The Cassation Court has yet to decide but as Justice is very slow in France, it will take a few years more to clear the issue.

Re: Copyright

Hello Josselin, I am keen to get sculptures and other 3-dimensional items into the database, especially classical stuff. However, I want us to really be "in the clear" vis-a-vis copyright. I *think* the idea of Wikimedia Commons is that they are all copyright free but require "attribution" (i.e., we have to state the source of the image). Most ublic domain archives will be like this.

It would be good to have a standardised dropdown list to automatically create these attribution lines, but for now it would be some manually-entered text in the Description field.

So for now, use those as seems right to you, just make sure that you're adding something about where it came from. If you are motivated, I'd suggest finding a good collection to work with for a bit, and then read their rules about attribution, so you can save a "template" to copy/paste as you upload.

Re: Copyright

Josselin, For now, we take the (legally) cautious approach of waiting until the next year just so there is no question of when in the year copyright changes over. There are a few other reasons that a January 1 turnover makes sense:

1. We don't have day and month for births and deaths (though that will change).2. There is a nice PR opportunity in the moment each year when a large number of our works switch from copyrighted to public domain status. We can make an event out of it, but it's a little less powerful if images trickle into the public domain (on our site) a few at a time.3. There is a budding movement around a January 1 "Public Domain Day" and I think our current system could work hand in hand with that.4. It's just more complex to calculate if we need two branches of code - one for year-only, one for specific date.

Re: Copyright

Hello smallberries, Unfortunately, Scott Herzog (of the Herzog family estate) sent us a number of threatening e-mails. One said "Please be advised that most if not all of the paintings of Herman Herzog were published at various times and therefore did not fall into the public domain 70 years after his death. Indeed, based on my initial research, many of his works will remain in copyright in the U.S. until 2047 and beyond." Another said "I will sue you and The Athenaeum unless you change the public domain notice to what I demanded..."

So, I have a special case for that one artist, which is explained on the copyright tab for his page. In a world where I had the money to follow up on these things, we could require that they show us some proof of the publications. As it is, I am just sad that the Herzog family is making his work less visible in a misguided attempt at control.